Supreme Court of India
NARAIN SINGH AND ORS.versusSTATE OF HARYANA
- Citation
- 2008 INSC 471
- Decided
- 9 April 2008
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
The Supreme Court held that the right of private defence was not available to the appellants; the killing was not justified, and the conviction under Section 304 Part II read with Section 34 IPC stands, with Narain Singh's sentence reduced to seven years.
Summary
The appellants, led by Narain Singh, were involved in a land dispute during which they attempted to sow jowar in a field belonging to the complainants. When the complainants and their husband tried to stop them, Narain Singh fired a gunshot that killed the husband, and his sons assaulted the complainants with sticks. The appellants claimed the right of private defence under Sections 96‑106 of the Indian Penal Code. The Supreme Court examined the scope, commencement and continuance of private defence, the burden of proof under Section 105 of the Evidence Act, and held that the threat had ceased and the killing was excessive, thus the defence was not available. Consequently, the conviction under Section 304 Part II read with Section 34 IPC was upheld, but Narain Singh's sentence was reduced to seven years, while the others' sentences remained unchanged. The fine and default stipulation were left untouched.
Issues considered
- The applicability of the right of private defence under Sections 96‑106 of the IPC to the facts of the case
- Whether the killing of the deceased was justified as private defence, considering the commencement and continuance of the right
- Whether the conviction should be under Section 302 r/w Section 34 or Section 304 Part II r/w Section 34
- The appropriateness of the sentences imposed on the appellants
Legislation cited
- Arms Act, 1959s. 27
- Indian Evidence Act, 1872s. 105
- Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 105, s. 106, s. 27, s. 302, s. 304(Part II), s. 323, s. 34, s. 96, s. 97, s. 98, s. 99
Subjects
private defenceright of self-defenceIndian Penal Codeculpable homicide not amounting to murderland disputeburden of proofsentence reductioncriminal appeal
Judgment
[2008] 6 S.C.R. 74
A NARAIN SINGH AND ORS.
v.
STATE OF HARYANA
(Criminal Appeal No. 632 of 2008)
APRIL 9, 2008
B
[DR. ARIJIT PASAYAT AND P; SATHASIVAM, JJ.]
Penal Code, 1860 - ss. 96 to 106; s. 304 Part II rlw s. 34 -
Right of private defence - When avail.able - Land dispute -
c Appellant No. 1 fired gun shots at husband of PW3 causing
his:rdeath - Other Appellants were sons of Appellant No. 1 -
They assaulted PWs 3 and 4 with 'Jai/y' - Plea of private
defence by all Appellants - Tenability of - Held: On facts, not
tenable - Right of private defence is essentially a defensive
right circumscribed by the governing statute i.e. /PC, available
0
only when circumstances clearly justify it - Right to defend
does not include a right to launch an offensive, particularly
when the need to defend no longer survived - Conviction
under s.304 Part II rlw s.34 /PC - Sentence of 7 years for
Appellant No. 1 and 5 years for other Appellants.
E
There was a land dispute between the parties.
According to the prosecution, when PW3, her husband
and PW4 tried to stop the Appellants from sowing 'Jowar'
in their field, Appellant No.1 fired gun shots on the chest
F of PW3's husband which proved fatal while the other
Appellants, who were sons of Appellant No.1, assaulted ·t
PWs 3 and 4 with 'Jaily'.
Trial Court convicted the Appellants under s.302 r/w
s.34 IPC and sentenced them to undergo life
G imprisonment and further imposed on them fine of
· Rs.20,000/- each with default stipulation. Appellants filed
appeal taking the plea of right of private defence. The High
Court held that Appellant No.1 by firing gun shot had
exceeded the right of private defence, as the deceased
H 74
NARAIN SINGH AND ORS. v. STATE OF HARYANA 75
and the witnesses were only armed with /athis, but altered A
his conviction to that under s.304 Part II r/w s.34 IPC with
sentence of RI for 10 years. Though the other Appellants
were similarly convicted they were each sentenced to
undergo RI for 5 years only. The fine awarded by the Trial
Court was maintained by the High Court. B
In appeal to this Court, it was submitted that the
Appellants were protected by the right of private defence,
and in any event, the sentence imposed on them was not
proper.
c
Partly allowing the appeal filed by Appellant No.1
while dismissing the appeal filed by the other Appellants,
the Court
HELD: 1.1. S.96, IPC provides that nothing is an
offence which is done in the exercise of the right of private D
defence. The Section does not define the expression 'right
of private defence'. It merely indicates that nothing is an
offence which is done in the exercise of such right.
Whether in a particular set of circumstances, a person
legitimately acted in the exercise of the right of private E
defence is a question offact to be determined on the facts
and circumstances of each case. No test in the abstract
for determining such a question can be laid down. In
determining this question of fact, the Court must consider
all the surrounding circumstances. It is not necessary for F
'I· the accused to plead in so many words that he acted in ·
self-defence. If the circumstances show that the right of
private defence was legitimately exercised, it is open to
the Court to consider such a plea. In a given case the Court
can consider it even if the accused has not taken it, if the G
same is available to be considered from the material on
record. Under Section 105 of the Indian Evidence Act, 1872,
the burden of proof is on the accused, who sets up the
plea of self-defence, and, in the absence of proof, it is not
possible for the Court to presume the truth of the plea of H
76 SUPREME COURT REPORTS (2008] 6 S.C.R.
A self-defence. The Court shall presume the absence of
such circumstances. It is for the accused to place
necessary material on record either by himself adducing
positive evidence or by eliciting necessary facts from the
witnesses examined for the prosecution. An accused
B taking the plea of the right of private defence is not
necessarily required to call evidence; he can establish
his plea by reference to circumstances transpiring from
the prosecution evidence itself. The question in such a
case would be a question of assessing the true effect of
c the prosecution evidence, and not a question of the
accused discharging any burden. Where the right of
private defence is pleaded, the defence must be a
reasonable and probable version satisfying the Court
that the harm caused by the accused was necessary
for either warding off the attack or for forestalling the
0
further reasonable apprehension from the side of the
accused. The burden of establishing the plea of self-
defence is on the accused and the burden stands
discharged by showing preponderance of probabilities
in favour of that plea on the basis of the material on
E record. [Para 7] [83-D-H, 84-A-E]
1.2. Ss.100 to 101 IPC define the extent of the right of
private defence of body. If a person has a right of private
defence of body under s. 97, that right extends under s.100
F to causing death if there is reasonable apprehension that
death or grievous hurt would be the consequence of the
assault. The accused need not prove the existence of the
right of private defence beyond reasonable doubt. It is
enough for him to show as in a civil case that the
G preponderance of probabilities is in favour of his plea.
[Paras 7, 8] [84-F, 85-8]
1.3. The number of injuries is not always a safe
criterion for determining who the aggressor was. It cannot
be stated as a universal rule that whenever the injuries
H are on the body of the accused persons, a presumption
NARAIN SINGH AND ORS. v. STATE OF HARYANA 77
must necessarily be raised that the accused persons had A
caused injuries in exercise of the right of private defence.
The defence has to further establish that the injuries so
caused on the accused probabilise the version of the right
of private defence. Non-explanation of the injuries
sustained by the accused at about the time of occurrence B
r or in the course of altercation is a very important
circumstance. But mere non-explanation of the injuries
by the prosecution may not affect the prosecution case
in all cases. This principle applies to cases where the
injuries sustained by the accused are minor and c
superficial or where the evidence is so clear and cogent,
so independent and disinterested, so probable, consistent
and credit-worthy, that it far outweighs the effect of the
omission on the part of the prosecution to explain the
injuries. [Para 9] [85-C, D, E, F]
D
) 1.4. A plea of right of private defence cannot be based
on surmises and speculation. While considering whether
the right of private defence is available to an accused, it
Is not relevant whether he may have a chance to inflict
severe and mortal injury on the aggressor. In order to find E
whether the right of private defence is available to an
accused, the entire incident must be examined with care
and viewed in its proper setting. S.97 deals with the subject
matter of right of private defence. The plea of right
comprises the body or property (i) of the person exercising F
·>- the right; or (ii) of any other person; and the right may be
exercised in the case of any offence against the body, and
in the case of offences of theft, robbery, mischief or
criminal trespass, and attempts at such offences in relation
to property. Section 99 lays down the limits of the right of
G
private defence. Ss.96 and 98 give a right of private
defence against certain offences and acts. The right given
,,r under ss.96 to 98 and 100 to 106 is col')trolled by s.99. To
claim a right of private defence extending to voluntary
causing of death, the accused must show that there were
H
78 SUPREME COURT REPORTS (2008] 6 S.C.R.
A circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would
be caused to him. The burden is on the accused to show
that he had a right of private defence which extended to
causing of death. Ss.100 and 101, IPC define the limit and
B extent of right of private defence. [Para 9] [85-F, G; 86-A-D]
1.5. Ss.102 and 105, IPC deal with commencement
and continuance of the right of private defence of body
'
and property respectively. The right commences, as soon
as a reasonable apprehension of danger to the body
c arises from an attempt, or threat, or commit the offence,
although the offence may not have been committed but
not until there is that reasonable apprehension. The right
lasts so long as the reasonable apprehension of the
danger to the body continues. [Para 1O] [86-D, E]
D 1.6. In order to find whether right of private defence
is available or not, the injuries received by the accused, .l..
the imminence of threat to his safety, the injuries caused
by the accused and the circumstances whether the
accused had time to have recourse to public authorities
E are all relevant factors to be considered. [Para 11] [86-G;
87-A]
1.7. A person who is apprehending death or bodily
injury cannot weigh in golden scales in the spur of moment
and in the heat of circumstances, the number of injuries
F required to disarm the assailants who were armed with
weapons. In moments of excitement and disturbed mental
equilibrium it is often difficult to expect the parties to
preserve composure and use exactly only so much force
in retaliation commensurate with the danger apprehended
G to him. Where assault is imminent by use of force, it would
be lawful to repel the force in self-defence and the right of
private-defence commences, as soon as the threat
becomes so imminent. Such situations have to be
pragmatically viewed and not with high-powered
H spectacles or microscopes to detect slight or even
NARAIN SINGH AND ORS. v. STATE OF HARYANA 79
.J...
marginal overstepping. Due weightage has to be given A
·to, and hyper technical approach has to be avoided in
considering what happens on the spur of the moment on
the spot and keeping in view normal human reaction and
conduct, where self-preservation is the paramount
consideration. But, if the fact situation shows that in the B
guise of self-preservation, what really has been done is
r
to assault the original aggressor, even after the cause of
reasonable apprehension has disappeared, the plea of
right of private-defence can legitimately be negatived. The
Court dealing with the plea has to weigh the material to c
conclude whether the plea is acceptable. It is essentially.
a finding of fact. [Para 12] [87-B-G]
1.8. The right of self-defence is a very valuable right,
serving a social purpose and should not be construed
narrowly. Situations have to be judged from the subjective D
point of view of the accused concerned in the surrounding
J
excitement and confusion of the moment, confronted with
a situation of peril and not by any microscopic and
pedantic scrutiny. In adjudging the question as to whether
more force than was necessary was used in the prevailing E
circumstances on the spot it would be inappropriate to
adopt tests by detached objectivity which would be so
natural in a Court room, or that which would seem
absolutely necessary to a perfectly cool bystander. The
person facing a reasonable apprehension of threat to F
himself cannot be expected to modulate his defence step
-·- by step with any arithmetical exactitude of only that much
which is required in the thinking of a man in ordinary times
or under normal circumstances. [Para 13) [87-G; 88-A-C]
1:9. The l'ight of private defence is essentially a G
defensive right circumscribed by the governing statute
i.e. the IPC, available only when the circumstances clearly
,i'
justify it. It should not be allowed to be pleaded or availed
as a pretext for a vindictive, aggressive or retributive
purpose of offence. It is a right of defence, not of H
80 SUPREME COURT REPORTS (2008] 6 S.C.R.
A retribution, expected to repel unlawful aggression and not
as retaliatory measure. While providing for exercise of the
right, care has been taken in IPC not to provide and has
not devised a mechanism whereby an attack may be a
pretence for killing. A right to defend does not include a
B right to launch an offensive, particularly when the need
to defend no longer survived. [Para 15] [88-F-H]
Munshi Ram and Ors. v. Delhi Administration AIR (1968)
SC 702;State of Gujarat v. Bai Fatima AIR (1975) SC 1478;
State of UP. v. Mohd. Musheer Khan AIR (1977) SC 2226;
C Mohinder Pal Jolly v. State of Punjab AIR (1979) SC 577; Biran
Singh v. State of Bihar AIR (1975) SC 87; Wassan Singh v.
State of Punjab (1996) 1 SCC 458; Sekar alias Raja Sekharan
v. State represented by Inspector of Police, TN. (2002) 8 SCC
354; Lakshmi Singh v. State of Bihar AIR (1976) SC 2263;
D Jai l)ev. v. State of Punjab AIR (1963) SC 612; Salim Zia v.
State of UP. AIR (1979) SC 391; Butta Singh v. The State of
Punjab AIR 1991 SC 1316 and Vidhya Singh v. State of M.P.
AIR (1971) SC 1857 - relied on.
Russel on Crime, 11th Edition Volume I, p.49- referred
E to.
2. In the present case, the Trial Court and the High
Court rightly held that the appellants are not protected by
the right of private defence. However, considering the
F factual scenario, the sentence of appellant No.1 is reduced
to seven years. In respect of others, no interference is
called for. Amount of fine imposed remain and default
stipulation needs no interference. [Paras 16, 17] [89-A, B]
CRIMINAL APPELLATE JURISDICTION : Criminal
G Appeal No. 632 of 2008.
From the Judgment and order dated 14/5/2007 of the High
Court of Punjab and Haryana at Chandigarh in Crl. A. No. 613- "'
DB/1997
H
NARAIN SINGH AND ORS. v. STATE OF HARYANA 81
[DR. ARIJIT PASAYAT, J.]
D.B. Goswami and Khwairakpam Nobin Singh for the A
Appellants.
Ameet Singh, Pareena Swarup and Harendra Singh for
the Respondent.
The Judgment of the Court was delivered by B
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of the
Division Bench of the Punjab and Haryana High Court partly
allowing the appeal filed by the appellants. Learned Additional c
Sessions Judge, Sonepat by judgment dated 8.8.1997 had
convicted appellants Narain Singh, Ramesh, Naresh and one
Suresh Kumar for offences punishable under Section 302 read
with Section 34 of the Indian Penal Code, 1860 (in short '!PC').
They were sentenced to undergo imprisonment for life and to D
pay a fine of Rs.20,000/- each with default stipulation. They were
also convicted under Section 323 read with Section 34 !PC and
sentenced to undergo three months RI. Accused-appellant
Narain Singh was convicted for offence punishable under
Section 27 of the Arms Act, 1959 (in short 'Arms Act') and E
sentenced to undergo one year RI. It is to be noted that the
appellant-Narain Singh is the father of the other accused
persons.
3. Prosecution version in a nutshell is as follows:
F
_.,.. One Smt. Raj Bala (PW.3) set the law into motion. Smt.
Bala lodged report with police stating that her husband Balbir
(hereinafter referred to as the 'deceased') was employed as a
driver in the Department of Electricity at Sonepat. She along
with her husband and children lived in Mahalia Sham Nagar,
G
Sonepat. Her husband had three brothers and five sisters. Her
father-in-law Charan Dass had 10 acres of land. Out of this,
four acres were given to them, while four acres were given to
her brother-in-law Raghbir Singh. Charan Dass kept two acres
for himself. No share of land was given to Narain. becaus2 h'o
ii
82 SUPREME COURT REPORTS [2008] 6 S.C.R.
A did not have good relation with his brothers and sisters, Narain
filed a Civil Suit against them. On 28.5.1995 Om Parkash son
of Raghbir Singh came to their house at Sonepat. He told them
that his uncle Narain Singh had gone to their field along with his
son Ramesh, Suresh and Naresh in a tractor, to sow Jawar.
B Smt..Bala along with Om Parkash and her husband Balbir Singh
went to the field. They reached there at about 11/11 Y:z a.m. They ,
found Naresh ploughing the field with his tractor and sowing
Jawar. Narain Singh standing there having a bandolier around
his neck. He was holding his licensed gun in his hands. His
c both sons Ramesh and Suresh were armed with Jailies. When
they tried to prevail them not to sow Jawar in their field, Naresh
stopped the tractor and picked up a Jaily. All of them raised a
"lalkara" not to spare them. Narain then fired a shot at her
husband Balbir Singh, which hit him on his chest. Ramesh gave
D a Jaily blow lathiwise on Smt. Bala's head. Two or three more
Jaily blows were given by Suresh. Naresh gave 3-4 Jaily blows
to Om Parkash. On the basis of this statement, FIR Ex PA/1
was recorded on 28.5.1995 at 1.00 p.m. The special report
reached the lllaqa Magistrate, Sonepat on the same day at 4.30
E p.m. After completion of investigation, charge sheet was filed.
Since they pleaded innocence, trial was held. The prosecution
to prove its case brought into the witness box ASI Mahinder
Singh (PW1), Virender Singh (PW2), Raj Bala (PW3), Om
Parkash (PW4),ASI Pirthi Singh (PW5), Ramesh Kumar(PW6),
F C. Rajinder Singh (PW7), Dr. O.P Gujaria (PW8), Dr. Subhash
Mathur (PW 9), HC Anil Kumar {PW10), Rajbir {PW11) and ASI
Rameshwar Dutt (PW12). PWs. 3 & 4 were stated to be eye
witnesses. Trial Court recorded conviction and imposed
sentences as noted above. All the accused persons filed appeal
G before the High Court.
4. Appellants took the plea of right of private defence. The
High Court held that the appellant Narain fired a shot from his
gun. He certainly exceeded the right of private defence, as the
deceased and the witnesses were only armed with lathies.
H Therefore, it was held that the appropriate conviction would be
NARAIN SINGH AND ORS. v. STATE OF HARYANA 83
[DR. ARIJIT PASAYAT, J.]
-lo.
under Section 304 Part II IPC. Appellant Narain Singh was A
sentenced to undergo imprisonment for ten years for offence
punishable under Section 304 Part II read with Section 34 IPC.
Though other accused persons were similarly convicted they
were each sentenced to undergo RI for five years. For the
offence punishable under Section 323 IPC appellant Narain B
Singh was sentenced to undergo imprisonment for three months.
The fine awarded by the Trial Court was maintained with default
stipulation. Appeal by Suresh Kumar was held to have abated
because he died during the pendency of the appeal.
5. In support of the appeal learned counsel for the appellant c
submitted that the Trial Court arid the High Court erroneously
held that the right of private defence was not available. In any
event, it was submitted that the sentence as imposed is high.
6. Learned counsel for the State on the other hand D
supported the judgment of the Trial Court and the High Court.
7. Only question which needs to be considered, is the
alleged exercise of right of private defence. Section 96, IPC
provides that nothing is an offence which is done in the exercise
of the right of private defence. The Section does not de.fine the E
expression 'right of private defence'. It merely indicates that
nothing is an offence which is done in the exercise of such right. ·
Whether in a particular set of circumstances, a person
legitimately acted in the exercise of the right of private defence
is a question of fact to be determined on the facts and F
t circumstances of each case. No test in the abstract for
determining such a question can be laid down. In determining
this question of fact, the Court must consider all the surrounding
circumstances. It is not necessary for the accused to plead in
so [llany words that he acted in self-defence. If the G
circumstances show that the right of private defence was
legitimately exercised, it is open to the Court to consider such a
plea. In a given case the Court can consider it even if the
accused has not taken it, if the same is available to be
considered from the material on record. Under Section 105 of H
84 SUPREME COURT REPORTS [2008] 6 S.C.R.
A the Indian Evidence Act, 1872 (in short 'the Evidence Act'), the
burden of proof is on the accused, who sets up the plea of self-
defence, and, in the absence of proof, it is not possible for the
Court to presume the truth of the plea of self-defence. The Court
shall presume the absence of such circumstances. It is for the
B accused to place necessary material on record either by himself
adducing positive evidence or by eliciting necessary facts from
the witnesses examined for the prosecution. An accused taking
the plea of the right of private defence is not necessarily required
to call evidence; he can establish his plea by reference to
c circumstances transpiring from the prosecution evidence itself.
The question in such a case would be a question of assessing
the true effect of the prosecution evidence, and not a question
of the accused discharging any burden. Where the right of private
defence is pleaded, the defence must be a reasonable and
D probable version satisfying the Court that the harm caused by
the accused was necessary for either warding off the attack or
for forestalling the further reasonable apprehension from the side
of the accused. The qurden of establishing the plea of self-
defence is on the accused and the burden stands discharged
E by showing preponderance of probabilities in favour of that plea
on the basis of the material on record. (See Munshi Ram and
Ors. v. Delhi Administration (AIR 1968 SC 702), State of Gujarat
v. Bai Fatima (AIR 1975 SC 1478), State of UP v. Mohd.
Musheer Khan (AIR 1977 SC 2226), and Mohinder Pal Jolly
F v. State of Punjab (AIR 1979 SC 577). Sections 100 to 101
define the extent of the right of private defence of body. If a person
>
has a right of private defence of body under Section 97, that
right extends under Section 100 to causing death if there is
reasonable apprehension that death or grievous hurt would be
G the consequence of the assault. The oft quoted observation of
this Court in Salim Zia v. State of UP (AIR 1979 SC 391 ), runs
as follows:
"It is true that the burden on an accused person to establish
the plea of self-defence is not as onerous as the one
H which lies on the prosecution and that, while the prosecution
NARAIN SINGH AND ORS. v. STATE OF HARYANA 85
[DR. ARIJIT PASAYAT, J]
is required to prove its case beyond reasonable doubt, A
the accused need not establish the plea to the hilt and
may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for
that plea in the cross-examination of the prosecution
witnesses or by adducing defence evidence." B
~-
8. The accused need not prove the existence of the right
of private defence beyond reasonable doubt. It is enough for
him to show as in a civil case that the preponderance of
probabilities is in favour of his plea.
c
9. The number of injuries is not always a safe criterion for
determining who the aggressor was. It cannot be stated as a
universal rule that whenever the injuries are on the body of the
accused persons, a presumption must necessarily be raised
that the accused persons had caused injuries in exercise of the D
right of private defence. The defence has to further establish
that the injuries so caused on the accused probabilise the
version of the right of private defence. Non-explanation of the
injuries sustained by the accused at about the time of occurrence
or in the course of altercation is a very important circumstance. E
But mere non-explanation of the injuries by the prosecution may
not affect the prosecution case in all cases. This principle applies
to cases where the injuries sustained by the accused are minor
and superficial or where the evidence is so clear and cogent,
so independent and disinterested, so probable, consistent and
F
credit-worthy, that it far outweighs the effect of the omission on
,, the part of the prosecution to explain the injuries. [See Lakshmi
Singh v. State of Bihar (AIR 1976 SC 2263)]. A plea of right of ·
private defence cannot be based on surmises and speculation.
While considering whether the right of private defence is
G
available to an accused, it is not relevant whether he may have
a chance to inflict severe and mortal injury on the aggressor. In
Jr
order to find whether the right of private defence is available to
an accused, the entire incident must be examined with care
-<
and viewed in its proper setting. Section 97 deals with the subject
H
86 SUPREME COURT REPORTS [2008] 6 S.C.R.
A matter of right of private defence. The plea of right comprises
the body or property (i) of the person exercising the right; or (ii)
of any other person; and the right may be exercised in the case
of any offence against the body, and in the case of offences of
theft, robbery, mischief or criminal trespass, and attempts at
B such offences in relation to property. Section 99 lays down the
limits of the right of private defence. Sections 96 and 98 give a
right of private defence against certain offences and acts. The
right given under Sections 96 to 98 and 100 to 106 is controlled
by Section 99. To claim a right of private defence extending to
c voluntary causing of death, the accused must show that there
were circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be caused
to him. The burden is on the accused to show that he had a right
of private defence which extended to causing of death. Sections
D 100 and 101, IPC define the limit and extent of right of private
defence.
10. Sections 102 and 105, IPC deal with commencement
and continuance of the right of private defence of body and
property respectively. The right commences, as soon as a
E reasonable apprehension of danger to the body arises from an
attempt, or threat, or commit the offence, although the offence
may not have been committed but not until there is that
reasonable apprehension. The right lasts so long as the
reasonable apprehension of the danger to the body continues.
F In Jai Dev. v. State of Punjab (AIR 1963 SC 612), it was
observed that as soon as the cause for reasonable apprehension
disappears and the threat has either been destroyed or has
been put to route, there can be no occasion to exercise the
right of private defence.
G
11. In order to find whether right of private defence is
available or not, the injuries received by the accused, the
imminence of threat to his safety, the injuries caused by the
accused and the circumstances whether the accused had time
to have recourse to public authorities are all relevant factors to
H
NARAIN SINGH AND ORS. v. STATE OF HARYANA 87
[DR. ARIJIT PASAYAT, J.]
...
be considered. Similar view was expressed by this Court in A
Biran Singh v. State of Bihar (AIR 1975 SC 87). (See: Wassan
Singh v. State of Punjab (1996) 1 SCC 458, Sekar alias Raja
Sekharan v. State represented by Inspector of Police, TN.
(2002 (8) sec 354).
B
12. As noted in Butta Singh v. ·The State of Punjab (AIR
1991 SC 1316), a person who is apprehending death or bodily
injury cannot weigh in golden scales in the spur of moment and .
in the heat of circumstances, the number of injuries required to
disarm the assailants who were armed with weapons. In
moments of excitement and disturbed mental equilibrium it is c
often difficult to expect the parties to preserve composure and
use exactly only so much force in retaliation commensurate with
the danger apprehended to him where assault is imminent by
use of force, it would be lawful to repel the force in self-defence
,_ and the right of private-defence commences, as soon as the D
threat becomes so imminent. Such situations have to be
pragmatically viewed and not with high-powered spectacles or
microscopes to detect slight or even marginal overstepping.
Due weightage has to be given to, and hyper technical approach
has to be avoided in considering what happens on the spur of E
the moment on the spot and keeping in view normal human
·reaction and conduct, where self-preservation is the paramount
consideration. But, if the fact situation shows that in the guise of
self-preservation, what really has been done is to assault the
original aggressor, even after the cause of reasonable F
apprehension has disappeared, the plea of right of private-
defence can legitimately be negatived. The Court dealing with
the plea has to weigh the material to conclude whether the u
plea is acceptable. It is essentially, as noted above, a finding of
fact. G
13. The right of self-defence is a very valuable right, serving
~.
a social purpose and should not be construed narrowly. (See
-!
Vidhya Singh v. State of MP (AIR 1971 SC 1857). Situations
have to be judged from the subjective point of view of the
H
88 SUPREME COURT REPORTS (2008] 6 S.C.R.
...
A accused concerned in the surrounding excitement and
confusion of the moment, confronted with a situation of peril and
not by any microscopic and pedantic scrutiny. In adjudging the
question as to whether more force than was necessary was used
in the prevailing circumstances on the spot it would be
B inappropriate, as held by this Court, to adopt tests by detached
objectivity which would be so natural in a Court room, or that
which would seem absolutely necessary to a perfectly cool
bystander. The person facing a reasonable apprehension of
threat to himself cannot be expected to modulate his defence
c step by step with any arithmetical exactitude of only that much
which is required in the thinking of a man in ordinary times or
under normal circumstances.
14. In the illuminating words of Russel (Russel on Crime,
11th Edition Volume I at page 49):
D
" .... a man is justified in resisting by force anyone who
manifestly intends and endeavours by violence or surprise
to commit a known felony against either his person,
habitation or property. In these cases, he is not obliged to
retreat. and may not merely resist the attack where he
stands but may indeed pursue his adversary until the
danger is ended and if in a conflict between them he
happens to kill his attacker, such killing is justifiable."
15. The right of private defence is essentially a defensive
:- right circumscribed by the governing statute i.e. the IPC,
available only when the circumstances clearly justify it. It should
not be allowed to be pleaded or availed as a pretext for a
vindictive, aggressive or retributive purpose of offence. It is a
right of defence, not of retribution, expected to repel unlawful
G aggression and not as retaliatory measure. While providing for
exercise of the right, care has been taken in IPC not to provide
and has not devised a mechanism whereby an attack may be a :>.
pretence for killing. A right to defend does not include a right to ..
launch an offensive, particularly when the need to defend no
H long2r survived.
NARAIN SINGH AND ORS. v. STATE OF HARYANA 89
[DR. ARIJIT PASAYAT, J.]
.i..
16. The Trial Court and the High Court rightly held that the A
appellants are not protected by the right of private defence.
17. Other question is that of sentence. Considering the
factual scenario, the sentence of appellant Narain is redue:ed to
seven years. In respect of others no interference is called for.
,__ Amount of fine imposed remain and default stipulation needs
8
no interference.
18. The appeal by appellant Narain Singh is allowed to
the aforesaid extent, while the appeal by the others stands
dismissed. C
B.B.B. Appeal filed by appellant Narain Singh Partly allowed.
and in r/o other appellants dismissed.
J.
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